E-discovery: Turning the discovery rules upside down

Litigation has changed this century, and perhaps most significantly, e-discovery has become the primary litigation expense. Conversely, and notwithstanding recent heroic and effective efforts at reform, our discovery rules continue to be perceived by many as part of the scenery out of a “Mad Men” episode, from a now-distant era that has disappeared along with slide rules, Ford Edsels and three-martini lunches. Our discovery rules were first written in 1938, and the original imperative to obtain all relevant documents continues to dominate many litigators’ outlooks on discovery. We need some new “unofficial” rules to banish this ancient perspective.

Before the advent of discovery, civil disputes were primarily resolved at trial. Each side marshaled its resources and went to trial within months of filing the complaint. The best lawyers were able to tell the client’s story with a compelling direct examination and demolish the opposition’s tale with penetrating cross-examination. This was the era of Daniel Webster, Stephen Douglas, Clarence Darrow and the rest of our legendary courtroom heroes.

Then came discovery, ostensibly designed to avoid surprise and ambush at trial. But rather than reforming trials, discovery accomplished an unintended revolution: Discovery became a right (with certain caveats) to all relevant documents, that is, any document that might lead to the discovery of admissible evidence. Counsel (not the court) propounded discovery on behalf of their clients, while judicial officers became involved after the fact, only to resolve objections and address motions to compel or for protective orders. But in the world of paper, arguments for relevant documents almost always prevailed, regardless of cost and burden.

The effect of discovery was, thus, to shift truth-seeking away from trials and toward that discovery space between the pleadings and the trial that is composed of interrogatories, production and — most importantly — depositions.

The era of the great oratory trial attorney gave way to that of the paper-based litigator, who only occasionally visited the courthouse for hearings and discovery motions. Litigation began to last for years instead of months, and trials virtually disappeared as parties exhausted their treasure on discovery, only to find, years into the process, that the facts were not so clear (or surprisingly bad), that key employees had poor testifying skills and that settlements were preferable to the uncertainty of trial. Discovery had become king, and within discovery depositions were of foremost importance.

Today, we are in the midst of another revolutionary change and shift in the primary locus of truth-seeking, this time caused by the information container: digital electronically stored information (ESI). These bits of information are electronic and magnetic charges whose binary values are coded into files. In turn, these electronic files are voluminous, dispersed, disorganized, fragile, redundant, variegated and recoverable. But most importantly, ESI is contemporary—emails, document revisions and dynamic databases now record our minute-by-minute business activities. ESI also records our personal daily activities, moment by moment—my smartphone tracks my location throughout the day; my browser and sites I visit memorialize my Internet surfing; my texts and tweets disclose my conversations; my smart phone photos and videos record what I was seeing. Why rely on human memory when there is an overabundance of human artifacts, readily available to tell almost any story?

This is the key to the second revolutionary shift: Truth is now primarily found in the ESI that records our movements, our thoughts, our communications and our behavior. We will always have trials and depositions relying on flawed recollections, but ESI is now the new primary locus of truth-seeking.

Unfortunately, our litigation culture is still mired in antiquated habits that obscure the flexibility recently grafted into the civil discovery procedure rules, and that keeps us mired in exponentially increasing terabytes of ESI. Therefore, we need a set of new tactical rules to escape the weight of old discovery prejudices inculcated by years of pursuing everything relevant.

What are the five new tactical rules?

ESI is the solution, not the problem. ESI will determine who wins and who loses. Get comfortable with data. Make it your best friend. ESI is not radioactive. Insist that your attorneys have some hands-on working knowledge of data and its path through the Electronic Discovery Reference Model. Why would anyone hire attorneys who didn’t understand, for example, that processing creates an index, and that how the index is created determines search capabilities? Handling ESI is not a dismal task to be assigned to the junior associate or the staff litigation support professional. The attorney responsible for the case must know and direct e-discovery.

ESI is compelling evidence. From the onset of the case, the oppositions must be managed to avoid e-discovery blunders. This is the litigator’s real purpose for the Rule 26(f) conference(s). Never miss this opportunity to control and direct the opposition: What are they preserving? How is it being collected? What is the search methodology? You need to make sure you are getting the ESI that will win your case. How will you know if you are going to get the important data if you haven’t assured yourself that the opposition is using a processing tool that cracks open .zip and .rar files and digs through layers of embedded email attachments? Don’t rely on a prospective motion for sanctions: Notwithstanding the few notorious headline cases, most e-discovery sanctions motions are nasty, bitter, expensive and unsuccessful.

Seek the important information. Abandon thinking of discovery as “getting all the relevant documents.” With ESI, relevance is necessary but not sufficient. Do not overcollect. Review custodian computers with the custodian in-person or remotely, using any one of the available screen-sharing tools. We need the important information; we don’t need to drown in all the information. Make sure you start by identifying and throwing out the likely junk by automated means such as de-duplication, clustering and grouping.

Start every case with an e-discovery budget. Judge Grimm hit the nail on the head five years ago in Mancia v. Mayflower Textile Servs. Co. Memorize Rule 26(b)(2)(C)(iii). The budget shows how much discovery the case will allow, so do not request all the opposition’s relevant documents, and do not allow the opposition to start that way with you. Start with the budget, then identify the key custodians and key document locations. Then use analytical software to identify and follow the important email and communications threads, and document creation and modification trails.

Sample everything. With ESI we have moved from the world of purported absolute correctness (actually an illusion from the beginning) to the world of “good enough.” Generally a 97 percent level of confidence, plus or minus 2 or 3 percent, should be “good enough.” The number of documents that need to be reviewed to obtain that level of statistical confidence is almost minimal compared to the total population. Insist on regular and routine sampling by your team and the opposition.

E-discovery turns document discovery on its head. Use interviews and technologies to obtain the important documents, not the now-fiscally irresponsible mass of merely relevant documents “about, related to, or concerning” the case. Good e-discovery is a surgical procedure.

E-discovery has been expensive in its early years, in large part because many practitioners dragged old habits into the new reality. As we apply these new tactical rules, the costs and confusion will decrease. “Courtroom drama” may be a disappearing genre of both entertainment and reality, but well-conducted e-discovery will save time and costs, and will help us get at the truth before judges and juries gather to decide cases.